SES claims full rights at 28 East

September 16, 2013 09.57 Europe/London By Julian Clover

SES says it has been granted right to use the German Ku-band frequencies at 28.5 degrees East from October 4, 2013. Rights to the frequencies are also claimed by Eutelsat, which initiated arbitration with The International Chamber of Commerce (ICC).The frequencies are used to broadcast to the UK, largely for the BSkyB and Freesat platforms.In a 2005 agreement with Media Broadcast, the successor to T-Systems Business Services, frequencies were issued by the Bundesnetzagentur, the German regulator, on the basis of German filings that have priority under the rules of the International Telecommunication Union.SES says the agreement for 500 MHz of bandwidth at this orbital position adjacent to SES’s 28.2 degrees East in the frequency bands 11.45 – 11.70 GHz and 12.50 – 12.75 GHz in downlink and 14.00-14.50 GHz in uplink. The bands would be covered by the delayed Astra 2E and Astra 2G, along with the already launched Astra 2G.Eutelsat commenced the proceedings in October 2012 on the basis that SES could not use the frequency band without breaching a 1999 intersystem coordination agreement between Eutelsat and SES.In a judgment released on September 4, 2013, the Tribunal found the 1999 agreement did not bar SES from using the relevant frequency bands if and when Eutelsat no longer holds the regulatory right to operate in those bands under the German filing.However, it did not give a date as to when those rights would end as it did not have the authority to rule on any contractual arrangement between Eutelsat and DTAG or MB.In a judgment by the Regional Court in Bonn on August 30, requested by Media Broadcast, Eutelsat was ruled to be prohibited to use the frequencies beyond October 4, 2013.Eutelsat says it will now appeal against the decision, underlining that it does not intend to create any harmful interference.The Tribunal now moves into a second phase, among them whether SES was entitled to sign an agreement in 2005 with Media Broadcast without breaching its obligations under the ICA. SES disputes those claims.

Eutelsat statement on operations at 28.5° East

The International Chamber of Commerce (ICC) of Paris has drawn its conclusions on the first phase of the arbitration initiated by Eutelsat Communications (Euronext Paris: ETL) against SES in October 2012.

Eutelsat’s request for arbitration was triggered by the claim by SES of the right to use 500 MHz of bandwidth in the 28.2/28.5° East orbital arc according to an agreement signed between SES and Media Broadcast in 2005 and only disclosed in October 2012. This request is grounded on a breach by SES of the Intersystem Coordination Agreement (ICA) signed with Eutelsat in 1999. The ICA signed by both operators covers use of certain orbital positions in Ku frequency bands over Europe and also favours competition in the satellite communications sector.

As a result of this first phase, the Arbitral Tribunal decided that:

The ICA does not bar SES from using the disputed bands if and when Eutelsat does not hold the “regulatory” right to operate in these bands;

SES did agree that Eutelsat would use the disputed bands as long as Eutelsat held the “regulatory” right to operate in these bands.

The Arbitral Tribunal did not decide on whether Eutelsat has the “regulatory” right. Eutelsat firmly believes and can demonstrate it has the “regulatory” right to operate in the disputed frequency bands.

On 30 August 2013, Media Broadcast obtained a preliminary injunction before the Regional Civil Court of Bonn preventing the use by Eutelsat of the disputed frequencies in the event that this creates harmful interference. Eutelsat will appeal this preliminary decision and confirms it does not intend to create harmful interference.

The purpose of the second phase of the arbitration with the ICC is to decide, amongst other issues, whether SES was entitled to sign an agreement in 2005 with Media Broadcast without breaching its obligations under the ICA.

Eutelsat will continue to vigorously defend its right to use the disputed frequencies from 4 October 2013 and to act in the best interests of clients.

As the overall 28.2/28.5° East dispute is ongoing, it is inappropriate to quantify the potential impact on the Group’s outlook provided to the market on 30 July 2013.